Professional Documents
Culture Documents
A 47
TEAM CODE: A 47
SATNAM SINGH
... APPELLANT-1
BALBIR SINGH
APPELLANT-2
V.
RESPONDENT
STATE OF PUNJAB
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A 47
TABLE OF CONTENTS
S. NO.
PARTICULARS
PAGE NO.
1.
LIST OF ABBREVIATIONS
ii
2.
INDEX OF AUTHORITIES
iii
3.
STATEMENT OF JURISDICTION
viii
4.
STATEMENT OF FACTS
ix
5.
ISSUES RAISED
xi
6.
SUMMARY OF ARGUMENTS
xii
7.
ARGUMENTS ADVANCED
I.
1-20
II.
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A 47
IV.
V.
8.
21
PRAYER
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LIST OF ABBREVIATIONS
S. NO.
ABBREVIATION
FULL FORM
1.
&
And
2.
Section
3.
Alias
4.
AIR
5.
Anr.
Another
6.
CrLJ
7.
CrPC
8.
DW
Defence Witness
9.
ed.
Edition
10.
F.I.R
11.
HC
High Court
12.
NCB
13.
NDPS
14.
NOC
Notes On Cases
15.
Ors.
Others
16.
PW
Prosecution Witness
17.
P&H
18.
r/w
Read with
19.
SC
Supreme Court
20.
SCALE
21.
SCC
22.
SI
Sub Inspector
23.
v.
Versus
MEMORANDUM ON BEHALF OF APPELLANTS
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INDEX OF AUTHORITIES
BOOKS REFERRED:
S. NO.
1.
BOOK NAME
Dibyajyoti De, Guide to Narcotic Drugs and Psychotropic Substances Act
(Wadhwa& Co., Nagpur 2003).
Dr. M.C. Mehanathan, Law of Control on Narcotic Drugs and
2.
2 Dr. V. Kesava Rao, Sir John Woodroffe & Syed Ameer Alis Law Of Evidence
(18th ed. Lexis Nexis Butterworths Wadhwa, Ngpur 2008)
4.
Justice C.K. Thakker, Law of Evidence (2nd ed.Whytes& Co., New Delhi 2015)
5.
6.
Sir John Woodroff, Code of Criminal Procedure (3rd ed. Law Publishers Pvt.
Ltd., Allahabad 2009)
STATUTES REFERRED:
S. NO.
1.
2.
3.
RULES REFERRED:
S. NO.
1.
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NCB INSTRUCTIONS
2.
JOURNAL REFERRED:
S. NO.
1.
WEBSITES REFERRED:
S.NO.
1.
www.airwebworld.com
2.
www.judis.nic.in
3.
www.manupatra.com
4.
www.scconline.com
2.
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A 47
WQsIFJhdW5pLCBQdW5qYWIsIEluZGlh&dt2=ChIJ3xMzWpMoEDkRf7yQO
61WvNU.
CASES REFERRED:
S. NO.
CASE NAME
CITATION
PG. NO.
2009(3) R.C.R.
27
Chandigarh
(Criminal) 649
2.
1995 Cri.L.J. 82
20
3.
25
4.
18
5.
A.I.R.2011S.C.1335
26
6.
(2013) 2 S.C.C. 67
30
7.
33
8.
2014(2)R.C.R.
17
1.
(Criminal)568
9.
21
(Ori.)
10.
1977 Cri.L.J. 88
33
11.
(2011) 2 S.C.C. 36
26
12.
23
676
13.
17
388 (D.B.)
14.
27
15.
32
16.
1990Cri.L.J.1119
16
17.
2000Cri.L.J.4635
20
18.
2007 Cri. L. J.
27
19
(Chh)
20.
24
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16, 26
S.C.
22.
23.
State of Maharashtra
1978(80)BOM.L.R.
28
35
90
24.
(2004) 2 S.C.C. 56
32
25.
24
26.
2008(1)R.C.R.(Cr.)
19
510
27.
23, 25
28.
18
Admn.)
799/2007
29.
32
30.
2010Cri.L.J. 4129
18
31.
Srikandaraja v. State
2014-2-
34
L.W.(Cri.)515
State of Gujarat v. KumuchandraPranjivan
Shah
750
2015 Cri. L. J.
and another
34.
34
35.
30, 31
32.
33.
28
15
2378
36.
2007(3)R.C.R.(Cri.)
15
1040
37.
32
(S.C.)
38.
35
39.
18
40.
30, 31
Gujarat
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STATEMENT OF JURISDICTION
The Appellants approach the Honble High Court of Punjab and Haryana under 36B1 of the
Narcotic Drugs and Psychotropic Act, 1985 which deals with appeal from Special Court r/w
374(2)2 of the Code of Criminal Procedure, 1973 which deals with appeal against
conviction.
36B. Appeal and revision.The High Court may exercise, so far as may be applicable, all the powers conferred by Chapters XXIX and
XXX of the Code of Criminal Procedure, 1973 (2 of 1974), on a High Court, as if a Special Court within the
local limits of the jurisdiction of the High Court were a Court of Session trying cases within the local limits of
the jurisdiction of the High Court.
2
374. Appeals from convictions.
(1) Any person convicted on a trial held by a High Court in its extraordinary original criminal jurisdiction may
appeal to the Supreme Court.
(2) Any person convicted on a trial held by a Sessions Judge or an Additional Sessions Judge or on a trial held
by any other Court in which a sentence of imprisonment for more than seven years has been passed against him
or against any other person convicted at the same trial; may appeal to the High Court.
(3) Save as otherwise provided in sub- (2), any person,(a) convicted on a trial held by a Metropolitan Magistrate or Assistant Sessions Judge or Magistrate of the first
class or of the second class, or
(b) sentenced under 325, or
(c) in respect of whom an order has been made or a sentence has been passed under 360 by any Magistrate,
may appeal to the Court of Session.
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STATEMENT OF FACTS
I.
TRIAL AND APPEAL
1. Satnam Singh, Balbir Singh and Kuldeep Kaur were tried by the Special Court for
offences under NDPS Act, 1985. As a result, Satnam Singh and Balbir Singh were
convicted and Kuldeep Kaur was acquitted. Dissatisfied by the decision of the trial court,
both the convicts have preferred an appeal in the Punjab and Haryana High Court.
II.
PROSECUTION VERSION AT THE TRIAL
2. Both the Appellants were halted at Naka at around 7:30 p.m. on 8th of January for the
search of the vehicle. Satnam Singh hesitated for the search. Nevertheless, the search was
conducted and a bag was found in the rear of the car. The search of the bag was
conducted in the presence of two independent witnesses, Deena Nath and Sardul Singh,
from which 1950 grams of opium was found. Satnam Singh ran away from the spot.
Thereafter, personal search of Balbir Singh was conducted after giving him a due option
of being searched in front of Magistrate or Gazetted Officer. He submitted to search by
police officer. 80 grams of opium was found from him too.
3. All the material was taken to the police station and the matter was reported to the SHO.
FIR was registered in the morning of 9th of January. Satnam Singh was arrested from his
home. The seized material was sent to FSL for examination. After due investigation and
interrogation, police report was filed under 173(2) of CrPC. Trial was commenced and
prosecution tried to base its case by examining its witnesses, submitting the reports of
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FSL, submitting the ownership proof of vehicle in the name of Kuldeep Kaur and
tendering the copy of judgment regarding the previous conviction of Balbir Singh in
2005. Examination of all the accused was also done u/s 313 of CrPC.
III.
DEFENCE VERSION AT THE TRIAL
4. The defence pleaded that the accused have been falsely implicated. As there was a dispute
between Satnam Singh and one Shamsher Singh regarding boundary wall, which
Shamsher Singh encroached upon taking benefit of his absence. He was a person with
influential links.
5. Satnam Singh went to the police station to report about the said incident. His complaint
was marked by SHO to SI Hakam Singh. He asked Satnam Singh to meet him at the Naka
Duty in the evening. When he actually went there, he was taken to the police station and
was put in lock up.
6. Sardul Singh deposed on behalf of the defence and said that he did not witness any search
and his signatures on some papers were taken on the next day.
7. Defence pleaded that Deena Nath is a gambler and a stooge of police. It also pleaded that
Hakam Singh was out to favour Shamsher Singh.
IV.
DECISION OF SPECIAL COURT
8. The Special Court, after considering all the material on record, convicted Satnam Singh
and Balbir Singh of offences u/s 8(c) and 18(c). Balbir Singh was also convicted u/s 31 of
NDPS Act, 1985. The court acquitted Kuldeep Kaur of all charges.
MEMORANDUM ON BEHALF OF APPELLANTS
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ISSUES RAISED
THE APPELLANTS RESPECTFULLY ASKS THE HONBLE PUNJAB & HARYANA HIGH COURT THE
FOLLOWING QUESTIONS:
ISSUE-I
WHETHER RESPONDENT HAS PROVED ALLEGED OFFENCE AGAINST THE APPELLANTS?
ISSUE-II
WHETHER ANY FALSE CASE HAS BEEN IMPLICATED AGAINST THE APPELLANTS?
ISSUE-III
WHETHER THE PROCEDURE ALLEGED TO BE ADOPTED IN SEARCH AND SEIZURE STANDS THE
SCRUTINY OF LAW?
ISSUE-IV
WHETHER THE PROCEDURAL SAFEGUARDS UNDER 50 OF NDPS ACT, 1985 HAVE BEEN
COMPLIED WITH?
ISSUE-V
WHETHER THE ENHANCEMENT OF SENTENCE BASED ON PREVIOUS CONVICTION IS VALID?
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SUMMARY OF ARGUMENTS
ISSUE-I
WHETHER RESPONDENT HAS PROVED THE ALLEGED OFFENCE AGAINST THE APPELLANTS?
It is submitted that all the necessary essentials to prove the offences under the NDPS Act
have not been satisfied viz., presence, conscious possession and recovery of the contraband.
Hence, the conviction of both the Appellants should be set aside and they should be set free
at liberty.
ISSUE-II
WHETHER A FALSE CASE HAS BEEN IMPLICATED AGAINST THE APPELLANTS?
It is submitted that a false case has been fabricated against the Appellants. There is an
unexplained delay in filing the FIR sending the samples to FSL, Chandigarh, which creates a
serious doubt of possible tampering. Moreover, there is a motive of enmity for Shamsher
Singh to falsely implicate the Appellants.
ISSUE-III
WHETHER THE PROCEDURE ALLEGED TO BE ADOPTED IN SEARCH AND SEIZURE STANDS THE
SCRUTINY OF LAW?
It is submitted that the procedure adopted does not stand the scrutiny of law as thestatement
of the witness that has turned hostile cannot be discarded in toto. Secondly, the other witness
is a stock witness. Lastly, even if the statement of both the witness is kept out of
consideration then also, conviction cannot be based solely on official witnesses as they are
also not reliable in the present case.
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ISSUE-IV
WHETHER THE PROCEDURAL SAFEGUARDS UNDER 50 OF NDPS ACT, 1985 HAVE BEEN
COMPLIED WITH?
It is submitted that the requirements under 50 have not been complied with. The objective
of 50 is to avoid the planting of a false case. It is a mandatory provision, substantial
compliance of which is not acceptable. In the light of various Supreme Court Judgments, it
can be said that there is no compliance of 50 in the present case and the Appellants should
be acquitted.
ISSUE-V
WHETHER THE ENHANCEMENT OF SENTENCE BASED ON PREVIOUS CONVICTION IS VALID?
It is submitted that the enhanced punishment should not be upheld as the Appellant-2 was
caught by surprise due to non-framing of charge for enhanced punishment under 31 of
NDPS Act. Moreover, there was no proper evidence on record for the same. And the
examination of the Appellant-2 under 313 of CrPC regarding previous conviction shows
that the learned Judge applied his judicial mind with a preconceived notion.
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ARGUMENTS ADVANCED
MOST RESPECTFULLY SHOWETH:
I.
1. It is humbly submitted that the Appellants have explained the purpose of visit and
presence at the spot
Appellant 1: That there was no one heeding to the complaint of the Appellant. He was
left to his own resource after observing the indifferent attitude of the Police Official to
his matter. He had to personally call up SI Hakam Singh to inquire and investigate
into his matter. SI Hakam Singh laid down a trap to call him to a particular spot to
meet him regarding the same.
Appellant 2: That since Appellant-1 was exploiting all means possible to save his
property from criminal trespass. He reposed trust upon Appellant-2, his brother-in-law
that he will be in a better position to convey the hardship suffered by Appellant-1 so
that Police Authorities may take the matter seriously. So, Appellant-2 accompanied
Appellant-1 to the naka.
B. THAT THE PROSECUTION HAS NOT ESTABLISHED CONSCIOUS POSSESSION OF THE OPIUM
2. It is submitted that unlawful possession is sine qua non for conviction under the Act and
that fact has to be established by the prosecution beyond reasonable doubt. The
prosecution has utterly failed to establish conscious possession of the appellants over the
allegedly recovered opium.
MEMORANDUM ON BEHALF OF APPELLANTS
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3. In a case3, it has been held Though possession has not been defined in the Act but has
been judicially construed to be conscious and intelligent possession and not merely the
physical presence of the accused in proximity or even in close proximity of the object.
4. The prosecution has proven no link of evidence to show that that the possession was in
conscious possession, mere factum of presence of the accused at the place of recovery
does not prove that he was in possession of it, possession must be intelligent possession.
Appellant 1: In a case4, where Police intercepted the vehicle which accused was
driving and allegedly 850 gms of Charas was recovered from vehicle of accused.
However, no clear, cogent, convincing and reliable piece of evidence on record to
prove that accused were found in conscious and exclusive possession of contraband. It
was held that acquittal of the accused is proper. In respect of contraband articles
concealed in the body of the vehicle, the driver of the car cannot be ascribed with the
possession of that article unless there are circumstances to show that he had
knowledge of such concealment.5
Appellant No. 2: It is humbly submitted that the prosecution has led no evidence to
establish that Balbir Singh (Appellant No.2) was in possession of the opium. Mere
fact that he was sitting in the car does not go on to show that he was aware of any
opium in the car. He was merely accompanying the other accused and all his
statements go on to show that there was no animus of possession on the opium
found from the boot of the vehicle. In a case of6 is notable in which the accused was
found travelling in the car from which some quantity of opium has recovered. The
court held that A driver of a vehicle, is certainly in possession of the vehicle in
question, but he cannot be said to be in possession of any article or thing concealed in
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the body of the vehicle, unless there are circumstances indicating knowledge to the
driver of such concealment. Thus, like a person in possession of land, does not
become the possessor unless he is aware of its existence.
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9. In the instant case, since there are major missing gaps in the procedure of search and
recovery, no presumption regarding culpable state of mind can be raised.
II.
10. It is submitted that recovery of the opium has been planted on the Appellants. In
arguendo, while not conceding the fact that opium was recovered from the Appellants,
there are serious doubts in the case of the Respondents which learned Special Court
seems to have ignored. In the instant case that the recovery of the opium was affected
from the appellants on the 8th January, 2015 whereas the samples were sent to the
Forensic Science Laboratory on the 26th of January, 2015. Thus, there has been a delay of
nearly 18 days in sending the samples for chemical examination. No explanation has been
forthcoming from the prosecution to explain this delay.
11. It has been held10that as long as it is shown that the seized article has been kept in proper
custody and proper form during the period it was so kept in the malkhana, the delay in
sending the sample for testing would not be fatal. However, there must be evidence to
show as to what happened in the interregnum. This was stated to be an important link.
12. In a case11, 5 kg. Ganja was seized from accuseds bag. Ganja was not weighed at time of
seizure, even then its weight was mentioned in memo. FSL received seized packet nearly
after 15 days of seizure. No specimen impression of seal was mentioned in FSL report.
Delay in delivering bag at FSL was unexplained. No evidence, explaining about custody
10
11
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of seized bag during those 15 days was given. Malkhana register was not produced in
evidence. Officer-in-charge of Malkhana, was not examined by prosecution. It was held
that Prosecution has failed to prove charges. Accused entitled to acquittal.
13. There is a time limit of 72 hours stipulated by the Narcotics Control Bureau for a seized
sample to be deposited with the Chemical Examiner for testing. This rule is salutary
because any attempt at tampering with the sample recovered from the accused can have
fatal consequences to the case of the prosecution. Strict compliance has to be insisted
upon in such an event.12
14. In a case13 the accused was entitled to benefit of doubt and acquitted where there was a
delay of 12 days in sending the samples to the FSL and it was held Once the testimony
of police witnesses is held not reliable, the Court always looks for independent
corroboration, non-sending of sample for a period of 12 days assumes importance.
15. In a case14, the facts were silent as to sealing of contraband as well as sample after seizure
and there was a delay of more than one month in dispatch of the samples from the
contraband seized to the Forensic Science Laboratory. Due to non-explanation of delay
by Officer in-charge of Police Station, the accused was given the benefit of doubt..
16. In Raghbir Singh and Another v. State of Punjab15 the following observations were made
The prosecution, when it seizes the samples and retrieves the case property of a
contraband, has to accord due sanctity to the same by preserving them in a manner that
when it is tested against its version, the same are not found wanting. The punishment
under the provisions of the Act is stringent and, therefore, the safe-guards, which have
been prescribed and encapsulated in it, require strict adherence, the failure to do so
12
Rishi Dev @ Onkar Singh vs State (Delhi Admn.), Crl. M (B) A. No. 799/2007.
Sant Singh v. State of Punjab , 2010 Cri.L.J.4129.
14
Asharfi Choudhary v. The State of Bihar , 2013Cri.L.J.1176.
15
2008(1)R.C.R.(Criminal)510.
13
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causes sufficient doubt and the benefit of the same necessarily has to go to the accused
persons.
17. It is humbly submitted that it is not clear as to how the seized contraband was handled
during the period between 08.01.2015-26.01.2015. It is also not clear that by whom the
samples were delivered to FSL on the day of 26 January, 2015 which is a national
holiday. Thus, any benefit of doubt must go in favour of the accused as no explanation is
forth-coming as far as the inordinate delay in the sending of samples is concerned.
B. THAT THERE IS DEEP GAPING MISSING LINK REGARDING SAFE CUSTODY OF THE
CONTRABAND
18. In the instant case, the vital link of evidence is missing as there is no convincing evidence
as to whose custody the seized articles were kept. It is not clear as to how the seized
contraband was handled during the period between 08.01.2015 till 26.01.2015. It is also
not clear from the evidence of the prosecution that the samples sent for chemical
examination was taken from the contraband seized in presence of the appellant.
19. That there is clear violation of 55 of NDPS Act16 which mandates an officer in-charge
of the police station to take charge and keep in safe custody of articles seized under the
Act which may be delivered to him and to affix his seal to such articles or to take samples
and all samples so taken shall also be sealed with a seal of the Officer-in- charge of the
police station. In the case17, In-charge of the Police Station had not affixed his seal on the
articles and the samples, the whole of the procedure followed was held to be illegal,
entitling the appellant to be acquitted.
16
An officer-in-charge of a police station shall take charge of and keep in sage custody, pending the orders of the
Magistrate, all articles seized under this Act within the local area of that police station and which may be
delivered to him, and shall allow any officer who may accompany such articles to the police station or who may
be deputed for the purpose, to affix his seal to such articles or to take samples of and from them and all samples
so taken shall also be sealed with a seal of the officer-in-charge of the police station.
17
Karnail Singh v State of Rajasthan, 2000Cri.L.J.4635.
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20. It has been held18 that the incriminating materials recovered from the accused and duly
identified during the proceeding go a long way in connecting the accused in the case.
Therefore, it is all the more necessary and imperative on the part of the investigating team
to seal it in such a manner and keep it in in such custody so as to wipe out the slightest
doubt in the mind of the Court that there could not have been any possibility whatsoever
that the article so seized could be tampered with before it could reach the public analyst.
21. In the instant case the facts are hushed about the fact of sealing of the seized contraband.
Moreover, Inspector Joginder Singh, Station House Officer of the Central Police Station,
Patiala has not been made as a witness to explain the safe custody of the seized
contraband. In a case19 where the Circle Inspector of the Police has maintained total
silence as to where those contraband items said to have been seized in the case were kept
till their production in Court, it has been held that it is the burden of the prosecution to
prove that the seized articles were sent for chemical analysis by adducing unimpeachable
evidence that there was no chance of tampering with the packets by the investigating or
any third agency and the same were the vary articles produced before the Magistrate and
sent for chemical analysis, leaving no scope of suspicion. Criminal trial does not admit
any gap or missing link.
22. It has been held that where the prosecution evidence is silent that any effective step was
taken for proper custody of the seized article and the same was sent after delay of 43
days, the benefit of doubt must be extended to the accused.20
23. It is submitted that whole of the prosecution case is barren regarding the fact of safe
custody of the seized article, therefore adverse presumption needs to be drawn against the
Respondents under 114, illustration (g)21 as when evidence about the particular facts
18
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was within the knowledge of the person and that person has not placed it before the
assessing authority, it is likely that such evidence has been produced it would have gone
against him.22 When the person withholds relevant documents in the possession, the court
must not hesitate to draw an adverse to it.23
22
Justice C.K. Thakker, Law of Evidence 1998 (2nd ed.Whytes& Co., New Delhi 2015).
Ibid.
24
Distance between Patiala Nabha Rd. (March 6, 2016) available at:
http://distancecalculator.globefeed.com/India_Distance_Result.asp?state=23&fromplace=PatialaNabha%20Road%2C%20Rauni%2C%20Punjab%2C%20India&toplace=Patiala%2C%20Punjab%2C%20India
%2C&dt1=EihQYXRpYWxhLU5hYmhhIFJvYWQsIFJhdW5pLCBQdW5qYWIsIEluZGlh&dt2=ChIJ3xMzW
pMoEDkRf7yQO61WvNU.
25
Ramjan vs State of U.P., 2011 (1) A.L.J. 581.
23
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26
1 Dr. V. Kesava Rao, Sir John Woodroffe& Syed Ameer Alis Law Of Evidence 855 (18th ed. Lexis Nexis
Butterworths Wadhwa, Ngpur 2008).
27
Jagdesh v State of Madhya Pradesh, 1981 S.C.C. (Cr.) 676.
9|Page
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30. It has been held that the accused is not bound to prove his defence to the hilt, like the
prosecution. It is sufficient if it is possible to indicate preponderance of probability28.
Such defence may be proved by cross examination of prosecution witnesses or by
examination of defence witness. The burden on accused is not as onerous as that which
lies on the prosecution. While the prosecution is required to prove its case beyond a
reasonable doubt, the accused can discharge his onus by establishing a mere
preponderance of probability29.
31. Hence, the fact that there existed a prior dispute and there is a possibility of nexus
between Shamsher Singh and Sub-Inpector, Hakam Singh (PW-3) creates a suspicion
regarding authenticity of the recovery.
III.
28
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speculation, we believe that they made an effort for the same, there is no evidence on
record fortifying this assertion.
34. In a case31 where the independent witnesses were not associated and explanation for the
said omission was by saying that several passersby were stopped but they refused to be
witnesses of the recovery. It was held that it is strange that the empowered officer did not
make any effort to note down the names and addresses of the persons whom he
approached for witnessing the recovery. This omission on the part of the empowered
officer has further rendered the prosecution case extremely doubtful. 100(8) of
Cr.P.C.32empowers the police officer to make a written order to the witnesses for
witnessing
search.
11 | P a g e
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there are some other circumstances which, when taken together, make it very unsafe to
uphold the Appellant's conviction.34
38. In a case35 in which one witness was declared hostile and other was examined as defence
witness, for recording the conviction, the Sessions Court as well as the High Court mainly
relied on the testimony of official witnesses who made the recovery. The Apex Court held
that though it is well settled that a conviction can be based solely on the testimony of
official witnesses, condition precedent is that the evidence of such official witnesses must
inspire confidence. In the present case, it is not as if independent witnesses were not
available. In our considered view, the manner in which the alleged recovery has been
made does not inspire confidence and undue credence has been given to the testimony of
official witnesses, who are generally interested in securing the conviction.
39. In a case36, where both the independent witnesses were declared hostile by prosecution. It
was held that independent corroboration appears to be necessary to hold the,
appellants/accused guilty for possession of the aforesaid contraband article. Similarly in
the case37, Apex Court held that the evidence to prove that charas and ganja were
recovered from the possession of accused consisted of the evidence of the police officers
and the panch witnesses. The panch witnesses turned hostile. Thus, we find that there is
no independent witness as to the recovery of the drugs from the possession of accused.
34
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that Deena Nath had been called on the phone by the police party. Therefore, a prior
nexus between the police and the witness has been established at trial. In light of this he
can neither be called as independent nor respectable.
41. It has been held in a case38 that the prosecution story cannot stick upon the versions of
person having fragile character. A case that is brought by the police before Court cannot
be sustained by mere evidence of the police personnel themselves. If the version of the
police has to be believed, it has to be supported by persons who have no nexus with the
police for wrong reasons and who are respected in the society by their conduct, calling or
avocation.
42. In a case39 where the judgment of the High Court was affirmed by the Apex Court it was
held that it was established by cogent evidence that he had acted in a number of cases as a
panch witness and there were good reasons to believe that he was a pliable witness not
worthy of evidence. So far as the police witness is concerned, the High Court has also
held by indicating that the police officer initially did not speak out the truth and tried to
suppress that the said panch witness had acted as panch witness in earlier cases.
Considering the aforesaid fact the High Court was of the view that the said witnesses did
not appear to be reliable and reliance should not be placed on their deposition.
Accordingly, the High Court was of the view that the prosecution had failed to establish
the case beyond reasonable doubt and passed the aforesaid judgment acquitting the
respondent.
D. THAT TESTIMONY OF OFFICIAL WITNESS IS AFTER CONSULTATION AND DELIBERATION
43. It is humbly submitted that the testimonies of the official witnesses are ridden with the
vice of embellishments and improvements. In the case40 where proof of the prosecution
case was sustained on the strength of the unblemished testimonies of the police witnesses
38
Ajay Malik and others v. State of U.T., Chandigarh, 2009(3) R.C.R.(Criminal) 649.
State of Gujarat v. Kumuchandra Pranjivan Shah, (1997 SCC (Cri) 750).
40
Ibid
39
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and their testimonies inter search were not ingrained with any vice of contradiction. To
give credence to their case they associated a witness who was an invented witness known
to the police officers beforehand. It was held that with the Investigating Officer having
invented an independent witness to the apposite proceedings besides fillips the sequel of
his intending to smother the truth qua the genesis of the prosecution version, naturally a
smothered version qua the genesis of the prosecution case cannot be foisted with any
veracity. Omission on the part of the Investigating Officer to associate them in the
apposite proceedings would be construable to be an intentional and deliberate omission
on his part, casting aspersions upon the transparency of the investigation carried out by
him, rendering amenable to disbelief the genesis of the prosecution version.
IV.
44. It is humbly submitted that no information as to the existence of any right under 50
NDPS Act was conveyed to the Appellant-2 and the alleged contraband was planted on
him. In arguendo while not conceding the fact Appellant-2 was informed of any right, it
is submitted that the procedure alleged to be adopted by the Respondent does not satisfy
the safeguards as provided under 5041 of Narcotic Drugs and Psychotropic Substances
Act, 1985 which deals with the conditions under which search of persons shall be
conducted. Right under 50(1) of the NDPS Act, is a safeguard that has been conferred
41
50:(1) When any officer duly authorised under 42 is about to search any person under the provisions of
41, 42 or 43, he shall, if such person so requires, take such person without unnecessary delay to the nearest
Gazetted Officer of any of the departments mentioned in 42 or to the nearest Magistrate.
(2) If such requisition is made, the officer may detain the person until he can bring him before the Gazetted
Officer or the Magistrate referred to in sub (1).
14 | P a g e
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on the suspect to check the misuse of power, to avoid harm to innocent persons and to
minimise the allegations of planting or foisting of false cases by the law enforcement
agencies.42
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Magistrate?" These words clearly indicate that the requirements of 50 have not been
complied with. The accused was merely given an option in the alternative without
informing him that he has a right to make a choice to get his personal search from either
of them.
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doubts on the recovery of the contraband from the car. When considering all attending
circumstances it further lends credence to the contention that the Appellants have been
falsely implicated in the case.
V.
51. NDPS Act is a substantive law defining the offences and the procedural law is defined
only to a limited extent and hence, in cases where the procedure is not given in NDPS
Act, the procedure given in CrPC should be followed as it is a general law relating to the
procedure that should be followed in criminal cases.
52. It is humbly submitted that framing of charges and examination of the accused under
313 CrPC are the very important stages in the criminal trial.49 The basic requirement in
every criminal trial therefore, is that the charge must be so framed as to give the accused
person a fairly reasonable idea as to the case which he is to face and the validity of the
charge must in each case, be determined.
49
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the accused is likely to lose an opportunity to show to the court that he is not liable to face
the trial on account of there being no evidence against him, cannot be ignored.50
54. It is humbly submitted that framing of charge is not a mere formality and a defective
charge may have serious repercussions on the ultimate result of a case. 51 Where the
omission to frame the charge is conscious, the omission cannot be availed of by the
prosecution in its favour for the application of 464 ( 535 old) of the Code.52
55. In a case53 where no specific charge under 31 NDPS Act was framed and none of
modes provided under 298 of Code of Criminal Procedure had been followed except
stating that he was convicted in C.C. No. 236/1993 and sentenced to undergo 10 years
rigorous imprisonment and to pay a fine of Rs. 1 lakh. It was argued on behalf of the
prosecution that since evidence has to be adduced only after the subsequent offence is
proved; therefore they must be allowed to lead fresh evidence to prove the same.
However,
it
was
held
that
the
accused
shall
be
released
forthwith.
50
Decision making in criminal cases by trial courts - factors leading to prejudice: a functional study ( March 7,
2016) available at:
http://shodhganga.inflibnet.ac.in/bitstream/10603/12751/13/13_chapter%204%20%20part%202.pdf.
51
2 Dr. V. Kesava Rao, Sir John Woodroffe& Syed Ameer Alis Law Of Evidence 1262 (18th ed. Lexis Nexis
Butterworths Wadhwa, Ngpur 2008).
52
Babu Lal v State, AIR 1960 All. 290.
53
Ghisulal v State of Madhya Pradesh, 1977 Cri.L.J. 88.
54
298.Previous conviction or acquittal how proved.--In any inquiry, trial or other proceeding under this Code,
a previous conviction or acquittal may be proved, in addition to any other mode provided by any law for the
time being in force,-(a) by an extract certified under the hand of the officer having the custody of the records of the Court in which
such conviction or acquittal was held to be a copy of the sentence or order, or
(b) in case of a conviction, either by a certificate signed by the officer in charge of the jail in which the
punishment or any part thereof was undergone, or by production of the warrant of commitment under which the
punishment was suffered together with, in each of such cases evidence as to the identity of the accused person
with the person so convicted or acquitted.
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57. In the present factual matrix neither documents have been submitted as provided by
298, nor has the identity of the accused been established. Although a copy of some
judgement was submitted but it was not marked in evidence for some unknown reasons
know best the learned Special Court Judge.
58. In the case of State of Kerala v. Shijil55where certain certified copy of the judgment which
was marked, were produced. But none of the documents produced contain a certificate
signed by the officer in charge of the jail in which the punishment or any part thereof was
undergone or the punishment suffered. Adding to the above, no evidence was let in to
bring on record to establish the identity of accused. Neither those documents were proved
by any other mode provided by any law as stipulated in Sec. 298 Cr.PC. It was held that
mere production of some certified copy would not meet the requirement of proof
provided under Sec. 298 Cr.P.C.
59. In the instant case, neither were the proceeding carried out to establish the identity of the
Appellant-2 nor any evidence was produced on record to prove the identity of the
Appellant-2 and therefore it cannot be the ground for an enhanced punishment under 31
of the NDPS Act.
60. In another case Srikandaraja v. State56, where no specific charge was framed for the
offence under 31 of NDPS Act and no evidence was let in to prove previous conviction
except a copy of the judgment which was unmarked. It was held that the enhanced
sentence imposed in lieu of 31 be set aside as no identity was established of the
Accused.
55
56
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57
Umer Saheb Burai Saheb Inamdar v. State, 1960 Cri. L.J. 573.
Sir John Woodroff, Code of Criminal Procedure 1259 (3rd ed. Law Publishers Pvt. Ltd., Allahabad 2009).
59
Murlidhar Yadav Patil v State of Maharashtra, 1978(80)BOM.L.R.90.
58
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PRAYER
HEREFORE IN THE LIGHT OF THE ISSUES RAISED, ARGUMENT ADVANCED, REASONS GIVEN
AND AUTHORITIES CITED, THIS HONBLE STATE COMMISSION MAY BE PLEASED TO:
TO HOLD
THAT THE TRIAL COURT HAS NOT RIGHTLY APPRECIATED THE FACTS OF THE CASE WHERE
THE PROSECUTION HAS PROVED THE OFFENCES AGAINST THEM.
THAT THE PROCEDURE ALLEGED TO BE ADOPTED IN SEARCH AND SEIZURE DOES NOT
STAND THE SCRUTINY OF LAW.
THAT THE PROCEDURE ADOPTED DOES NOT SATISFY THE SAFEGUARDS PROVIDED UNDER S.
50 OF THE NDPS ACT, 1985.
THAT THE TRIAL COURT HAS TAKEN THE FACTUM OF PREVIOUS CONVICTION OF
APPELLANT-2 WITHOUT PROPER EVIDENCE ON RECORD.
TO PASS
AND ANY OTHER RELIEF THAT THIS HONBLE COURT MAY BE PLEASED TO GRANT IN THE
INTERESTS OF JUSTICE, EQUITY AND GOOD CONSCIENCE.
ALL OF WHICH IS RESPECTFULLY SUBMITTED.
COUNSELS FOR APPELLANTS
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